The Federal Court of Australia has declared that BIS Cleanaway Limited, formerly Brambles Australia Limited, engaged in misleading conduct and unconscionable conduct relating to waste collection services in Rockhampton.
Justice Greenwood in the Brisbane court made the declarations, by consent, in proceedings begun by the Australian Competition and Consumer Commission. The court declared that Cleanaway engaged in misleading and deceptive conduct in contravention of section 52 of the Trade Practices Act 1974 during November 2001 and December 2001, at which time Cleanaway's agent:
- visited 18 customers and stated that the purpose of the visit was to either gauge customer satisfaction, customer information, check equipment or carry out a site inspection
- requested the customer sign a Service Agreement form to acknowledge the visit of the agent
- did not disclose that the Service Agreement would comprise a contract between the customer and Cleanaway
- did not disclose any of the terms of the agreement
- did not give the customer an opportunity to determine independently the nature of the Service Agreement form, and
- did not inquire whether the representative of the customer had authority to sign a contract on behalf of the customer.
The court declared that Cleanaway also engaged in unconscionable conduct in contravention of section 51AC of the Act in that the conduct occurred in circumstances where unfair tactics were used, and where Cleanaway did not act in good faith.
The court further declared that in relation to two of these customers, Cleanaway's agent engaged in unconscionable conduct in contravention of s51AC of the Act in insisting on the performance of the Service Agreement, informing the customer that they were not entitled to terminate the Service Agreement, and threatening legal action if they did not act in accordance with the Service Agreement.
Cleanaway also consented to an order that it send a letter to 52 customers to advise the outcome of the proceedings, and to offer the opportunity to lodge a complaint and/or to make a claim for compensation. In addition, Cleanaway had agreed to offer a s87B undertaking to the ACCC with regard to its implementation of a trade practices law compliance program and training, and to pay a percentage of the ACCC's costs of the court proceedings.
A former Cleanaway territory manager also consented to declarations that he was knowingly concerned in misleading and unconscionable conduct by Cleanaway, in that he engaged in conduct of the kind outlined above in respect to one customer.
The manager has agreed to offer an s87B undertaking to the ACCC to undergo trade practices law compliance training.
"It is of particular concern that the case involved unfair tactics which affected various small businesses", ACCC Chairman, Mr Graeme Samuel, said today.
"This outcome acts as a reminder for those in the business community, particularly those in strong bargaining positions, that they should ensure that in their business dealings they adhere to the necessary standards of honesty and fair dealing."